Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P11 pdf

One common tactic is for the court to issue an order prohibiting the prosec utor, the defense attorney, and other trial participants from making public comments about the case. Courts often permit extensive juror questionnaires that give both sides the chance to identify persons who have been exposed to pretrial publicity and who have already made up their minds about the guilt or innocence of the defendant. A court also may sequester the jury durin g the course of the trial. Another tactic is to postpon e the trial until publicity dies down. In rare cases a court will change the venue of the trial to a locale less affected by the pretrial publicity. FURTHER READINGS Bruschke, Jon, and William E. Loges. 2003. Free Press vs. Fair Trials: Examining Publicity’s Role in Trial Outcomes. Mahwah, N.J.: Lawrence Erlbaum Associates. Duncan, Susan Hanley. 2008. “Pretrial Publicity in High Profile Trials: An Integrated Approach to Protecting the Right to a Fair Trial and the Right to Privacy.” Ohio Northern Law Review 34. Stack, Richard. 1998. Courts, Counselors & Correspondents: A Media Relations Analysis of the Legal System. Littleton, Colo.: F.B. Rothman. Swingle, H. Morley. 2001. “Prosecutors Beware: Pretrial Publicity May Be Hazardous To Your Career.” Prosecutor, Journal of the National District Attorneys Association 35 (September-October). CROSS REFERENCES Criminal Law; Criminal Procedure; Due Process of Law; Freedom of the Press. PREVAILING PARTY The litigant who successfully brings or defends an action and, as a result, receives a favorable judgment or verdict. PREVENTIVE DETENTION The confinement in a secure facility of a person who has not been found guilty of a crime. Preventive detention is a special form of imprisonment. Most persons held in preventive detention are criminal defendants, but state and federal laws also authorize the preventive detention of persons who have not been accused of crimes, such as certain mentally ill persons. Preventive detention is a relatively recent phenomenon. Before the 1970s the general practice in criminal courts was to set bail for almost all criminal defendants. For defendants accused of particularly heinous crimes, courts would set the amount of bail so high that the defendants were unlikely to be released. Defen- dants in MURDER cases were held in jail without bail through the end of trial. In the early 1970s the District of Columbia became the first jurisdiction to experiment with preventive detention for defendants other than murder defendants. Under D.C. Code 1973, 23– 1322, a DEFENDANT charged with a dangerous or violent crime could be held before trial without bail for up to 60 days. The defendant was entitled to a hearing at which the PROSECUTOR was required to present evidence of a substantial probability that the defendant committed the alleged offense. The defendant was allowed to present evidence, cross-examine witnesses, and appeal an adverse ruling. This detention scheme was upheld by the District of Columbia Court of Appeals in United States v. Edwards, 430 A.2d 1321, (1981), cert. denied, 455 U.S. 1022 (1982). Congress created a federal preventive deten- tion system for criminal defendants in the Federal Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141 et seq. [ 1996]). The act is similar to the District of Columbia law with several excep- tions. Under the act, the prosecution is not required to notify a defendant that it intends to present evidence of his past crimes. The federal act allows a court to accept evidence from the prosecution without giving the defendant an opportunity to question the evidence. The federal act does not limit the defendant’s detention; a defendant may be held without bail until he is found not guilty. Finally, the class of defendants eligible for preventive detention is broader under the federal act than under the District of Columbia law. The federal act authorizes the court to conduct a preventive detention hearing upon a motion made by the prosecutor where the defendant is accused of (1) a crime of violence; (2) a crime for which the maximum sentence is life in prison or death; (3) an offense that is punishable by a prison term of ten years or more under the federal Controlled Substances Act or the Maritime Drug Law Enforcement Act; or (4) any felony if the person has been convicted of two or more violent offenses or federal drug offenses. Furthermore, a defendant may be held in preventive detention prior to trial if the court finds that he or she may flee or intimidate, threaten, or injure a prospective witness or juror. The court can make such a finding on its own, without a motion filed by the prosecutor. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 88 PREVAILING PARTY Under the federal act, a court may consider several factors when it decides whether to detain a criminal defendant, including the nature and circumstance of the offense charged; the weight of the evidence against the defendant; the history and characteristics of the defendant, including his or her character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, drug and alcohol history, and criminal history; the defendant’s prior attendance at court proceedings; whether the defendant was on PAROLE, PROBATION,orother conditional release at the time of the alleged offense; and the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release. A criminal defendant who is confined in jail through the end of trial is considered detained until the day of sent encing. Defendants sen- tenced to prison receive credit for the time that they serve in jail prior to the beginning of their sentence, but some defendants may go free until the day of sentencing. Under the federal act, a criminal defendant who is convicted at trial must be detained until the day of sentencing, with the following exceptions. Under 18 U.S.C.A. § 3143 (1997), a defendant who does not face a prison term may be released until the day of sentencing, and defendants whom the court finds are not likely to flee and do not present a danger to the safety of any other person may also be released. If the defendant is appealing a guilty verdic t, the court may release the defendant pending the outcome of the appeal if it finds that the defendant is not dangerous and will not flee and that the appeal may yield a result favorable to the defendant. The U.S. SUPREME COURT entertained a challenge to the federal act based on the EIGHTH AMENDMENT in 1987 in United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697. Anthony Salerno and Vincent Cafaro, who were facing numerous federal RACKETEERING charges, were detained without bail after a detentio n hearing because the court believed that they posed a danger to the community. Salerno and Cafaro appealed to the Supreme Court, arguing that the court violated their due process rights by detaining them, and therefore essentially punishing them, on the basis of potential crimes. The defendants also argued that the federal act violated the Excessive Bail Clause of the Eighth Amendment. By a vote of six to three, the Court rejected both arguments. According to the majority, “The mere fact that a person is detained does not i nexorably lead to the conclusion that the government has imposed punishment.” The Court reasoned that to determine whether detention constitutes punishment, it must look to the legislative intent behind the ac t. Because Congress had formulated the act to prevent danger to the community, and not as punish- ment for the defendant, the detention was best characterized as regulatory and not punitive. Because the detention was not considered punishment, the defendants were due only minimal process. The Court con cluded that the hearing the defendants had received sufficient process to justify the detention. The Court also rejected the defendants’ exces- sive-bail argument, noting that the Eighth Amendment prohibits only the setting of excessive bai l and does not address the issue of whether bail should be available at all. All states now allow for the p reventive detention of criminal defendants without bail prior to trial and for the continued detention of defendants before sentencing and during appeals. Preventive detention may also be imposed on persons other than criminal defendants. States may detain mentally unstable individuals who present a danger to the public, including criminal defendants found not guilty by reason of insanity. In Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979), the High Court ruled that a state may place mentally unstable persons in preventive detention for an indefinite period of time, but only after the government has shown by at least a PREPONDER- ANCE OF EVIDENCE that the perso n presents a danger to himself or herself or to others. If the person becomes mentally stable and shows no sign of mental illness, continued confinement of the person violates due process (Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L. Ed. 2d 437 [1992]). The Supreme Court has ruled that persons accused of dangerous crimes who become incompetent before trial may be placed in preventive detention until they are competent (Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 [1972]). The Court also has ruled that potentially dangerous resident ALIENS may be detained pending DEPORTATION proceedings (Carlson v. Landon, 342 U.S. 524, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PREVENTIVE DETENTION 89 72 S. Ct. 525, 96 L. Ed. 547 [1952]; Wong Wing v. United States, 163 U.S. 228, 16 S. Ct. 977, 41 L. Ed. 140 [1896]). Finally, juveniles who have been arres ted on the suspicion that they have committed a crime may be placed in preven- tive detention if they present a danger to the community (Schall v. Ma rtin, 467 U.S. 253, 104 S. Ct. 2403, 8 1 L. Ed. 2d 207 [1984]). In the 1990s some states enacted laws that authorized the continued INCARCERATION of convicted child sex offenders after the offender had served his sentence. Such laws were challenged as violating several constitutional rights, i ncluding the right to due process, the right to be free from CRUEL AND UNUS UAL PUNISHMENT , the right to be free from DOUBLE JEOPARDY , and the prohibition of EX POST FACTO LAWS (laws that retroactively apply criminal sanctions). Results o f challenges to these sex offender statutes have varied. In 2007 a Missouri court confined a convicted sex offender to a mental institution because it found clear and convinc- ing evidence that the man posed a risk to children. The man had not been convicted of any crime for more than 20 years, but the judge approved what could amount to a life sentence in the mental institution. In another example from Connecticut, a judge refused to order additional co nfineme nt of a serial rapist who had completed his term. According to the judge, the man was entitled to be released despiteevidencethathecouldposearisk of harm. FURTHER READINGS Jackson, Joe, and William F. Burke, Jr. 2000. Dead Run: The Shocking Story of Dennis Stockton and Life on Death Row. New York: Walker. Lhotka, William C. 2007. “Potential Sex Predator May Be Confined for Life” St. Louis Post-Dispatch (Nov. 1). Miller, Frank W., et al. 1991. Prosecution and Adjudication. 4th ed. Westbury, N.Y.: Foundation Press. Miller, Marc, and Martin Guggenheim. 1990. “Pretrial Detention and Punishment.” Minnesota Law Review 75. Pazniokas, Mark and Gary Libow. 2007. “Court Refuses to Hold Convict Longer” Hartford Courant (Oct. 12). Rodriguez, Nancy. 2003. Persistent Offender Law: Racial Disparity, Patterned Offenses, and Unintended Effects. New York: LFB. Secret, Philip E. 1977. The Constitutionality of Preventive Detention. Washington, D.C.: Univ. Press of America. CROSS REFERENCES Child Abuse; Criminal Law; Criminal Procedure; Due Process of Law; Insanity Defense; Sex Offenses. PRICE-FIXING The organized setting of what the public will be charged for certain products or services agreed to by competitors in the marketplace in violation of the SHERMAN ANTI-TRUST ACT (15 U.S.C.A. § 1 et seq.). Horizontal price-fixing involves agreements to set prices made among one particular class of sellers—such as producers, wholesalers, or retailers. Vertical price-fixing occurs between differ- ent categories of the sellers of products and services, such as between a manufacturer and wholesaler, wholesaler and distributor, or distributor and retailer. At the turn of the millennium, the presti- gious international auction houses of Christie’s and Sotheby’s were embroiled in a price-fixing scandal involving collusion over the commis- sions charged. The respective CEOs were severely punished, with one serving ten months in federal prison and the other sentenced to home confinement and paying a six-figure fine. A considerable settlement was reached in a CLASS ACTION suit brought by clients who transacted business with the firms through the years when they were illegally agreeing to set their fees together. FURTHER READING Mason, Christopher. 2004. The Art of the Steal. New York: Putnam. CROSS REFERENCE Antitrust Law. PRIGG V. PENNSYLVANIA A pre–Civil War case, Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 10 L. Ed. 1060 (1842), declared unconstitutional all fugitive slave laws enacted by the states on the ground that the federal law provided the exclusive remedy for the return of runaway slaves. The national debate over SLAVERY grew in intensity beginning in the 1840s. Many of the Northern states demonstrated their hostility to slavery by enacting laws that attempted to frustrate Southern slave owners who came North in search of runaway slaves. Slave owners were outraged at these laws, arguing that the federal Fugitive Slave Act of 1793 gave them the right to reclaim their property without interference by state government. In 1842 the U.S. Supreme Court resolved the issue in Prigg v. Pennsylvania. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 90 PRICE-FIXING Edward Prigg, a professional slave catcher, seized Margaret Morgan, a runaway slave from Maryland living in Pennsylvania. Prigg applied to a state magistrate for certificates of removal under the federal Fugitive Slave Act of 1793 and an 1826 Pennsylvania personal liberty law. Prigg needed the certificates to legally remove Morgan and her two children to Maryland. The Penn- sylvania law had a higher standard of proof for demonstrating the slave owner applicant’stitleto the slaves. After the magistrate refused to issue the certificates, Prigg illegally returned the slaves to Maryland. Pennsylvania indicted Prigg for KIDNAPPING under the 1826 law and extradited him from Maryland. Following his conviction, Prigg appealed to the U.S. Supreme Court. By an 8–1 vote, the Court reversed his conviction. Writing for the Court, Justice JOSEPH STORY concluded that the Pennsylvania law was unconstitutional because it conflicted with the federal act. He based his analysis on the Fugitive Slave Clause contained in Article IV, Section 2, of the U.S. Constitution. The clause directs the return of runaway slaves to the state from where they came. Story claimed that the clause was a “funda- mental article, without the adoption of which the Union could not have been formed.” His historical analysis, however, was questionable. The clause was added late in the Constitutional Convention and was not debated. Nevertheless, Story concluded that the clause was a “practical necessity.” Without it, every non-slaveholding state would have been at liberty to free all runaway slaves coming within its limits. This would have “created the most bitter animosities, and engender ed perpetual strife between the different states.” Having established that the Fugitive Slave Clause guaranteed the rights of slave owners to reclaim runaway slaves and to prevent non- slaveholders from interfering with such prop- erty rights, Story looked to the Fugitive Slave Act of 1793 for enforcement of these rights. Story held that the constitutional provision gave Congress the authority to pass the act, stating that “where the end is required, the means are given.” Pennsylvania had argued that its law was based on the POLICE POWERS given to it by the Constitution. Story rejected this argument, holding that be cause the federal law was based on a specific constitutional provision that was national in scope, the federal power on this issue was exclusive. As an extension of this conclusion, Story ruled that states were not compelled to enforce the federal fugitive slave provisions. It would be inconsistent and without legal basis, he rea- soned, for the Court to declare the preeminence of federal law and then require state courts to help carry out the law. Therefore, the federal government was “bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution ” Though Story wished that state judges would execute the federal law, he understood that the federal government had no power to require them to do so. Even if there had been no federal law on runaway slaves, Story, without “the slightest hesitation,” found in the Fugitive Slave Clause an implied right for a slave owner or slave owner’s agent to go into any state and recapture a slave. The owner of a slave “is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence.” Story expressly recognized the police power of the states to arrest, detain, or exclude runaway slaves from their borders. States had as much right to protect themselves against the “depreda- tions and evil example” of runaways as they did against “idlers, vagabonds, and paupers.” An 1847 handbill offering a reward for an escaped slave. The Supreme Court’s decision in Prigg frustrated slave owners as Northern states obliged the Court by refusing to participate in fugitive slave proceedings. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PRIGG V. PENNSYLVANIA 91 These regulations, however, “can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave.” The Prigg decision angered slavery oppo- nents. Some state judges took Story’s opinion to heart and refused to participate in federal fugitive slave proceedings. In 1843 Massach u- setts passed an act that forbade any state official from participating in the return of a fugitive slave under the 1793 federal law. Other Northern states passed similar acts. Slave owners soon became aware that the withdrawal of state support curtailed their ability to return slaves to the South. There were not enough federal magistrates to process applica- tions under the 1793 law. This led to the FUGITIVE SLAVE ACT OF 1850, which authorized the appointment of a federal commissioner in every county in the United States who could issue certificates of removal for fugitive slaves. Persons who interfered in the process were subject to criminal penalties. The 1850 act caused many runaway slaves to move to Canada. Prigg was a crucial case because it an- nounced that slavery was a national issue that could not be disturbed by STATE ACTION. It also disclosed that the institution of slavery was woven into the Constitution. FURTHER READINGS Finkelman, Paul. 2009. “John Mclean: Moderate Abolition- ist and Supreme Court Politician.” Vanderbilt Law Review 62 (March). ———. 1993. “Sorting Out Prigg v. Pennsylvania.” Rutgers Law Journal 24 (spring). Maltz, Earl M. 2000. “Majority, Concurrence, and Dissent: Prigg v. Pennsylvania and the Structure of Supreme Court Decisionmaking.” Rutgers Law Journal 31 (winter). PRIMA FACIE [Latin, On the first appearance.] A fact presumed to be true unless it is disproved. In common parlance the term prima facie is used to describe the apparent nature of something upon initial observation. In legal practice the term generally is used to describe two things: the presentation of sufficient evidence by a civil claimant to support the legal claim (a prima facie case), or a piece of evidence itself (prima facie evidence). For most civil claims, a plaintiff must present a prima facie case to avoid dismissal of the case or an unfavorable directed verdict. The plaintiff must produce enough evidence on all elements of the claim to support the claim and shift the burden of evidence production to the respondent. If the plaintiff fails to make a prima facie case, the respondent may move for dismissal or a favorable directed verdict without presenting any evidence to rebut whatever evidence the plaintiff has presented. This is because the burden of persuading a judge or jury always rests with the plaintiff. Assume that a plaintiff claims that an employer failed to promote her based on her sex. The plaintiff must produce affirmative evidence showing that the employer used illegiti- mate, discriminatory criteria in making employ- ment decisions that concerned the plaintiff. The employer, as respondent, does not have a burden to produce evidence until the plaintiff has made a prima facie case of SEX DISCRIMINATION (Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 [1981]). The precise amount of evidence that constitutes a prima facie case varies from claim to claim. If the plaintiff does not present a prima facie case with sufficient evidence, the judge may dismiss the case. Or, if the case is being heard by a jury, the judge may direct the jury to return a verdict for the respondent. Prima facie also refers to specific evidence that, if believed, supports a case or an element that needs to be proved in the cas e. The term prima facie evidence is used in both civil and CRIMINAL LAW. For example, if the prosecution in amurdercasepresentsavideotapeshowing the defendant screaming death threats at the victim, s uch evidence may be prima facie evidence of intent to kill, an element that must be proved by the prosecution before the defendant may be convicted o f murder. On its face, the eviden ce indicates that the defendant intended to kill the victim. Statutes may specify that certain evidence is prima facie evidence of a certain fact. For example, a duly authenticated copy of a defen- dant’s criminal record may be considered prima facie evidence of the defendant’spriorconvic- tions and may be used against the defendant in court (Colo. Rev. Stat. Ann. § 18-3-412 [West 1996]). A CIVIL LAW example is a statute that makes a duly certified copy or duplicate of a certificate of authority for a fraternal benefit society to transact business prima facie evidence that the society is legal and legitimate (Colo. Rev. Stat. Ann. § 10-14-603 [West 1996]). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 92 PRIMA FACIE FURTHER READINGS Herlitz, Georg Nils. 1994. “The Meaning of the Term ‘Prima Facie.’” Louisiana Law Review 55. Whisner, Mary. 2009. “The United States Code, Prima Facie Evidence, and Positive Law.” Law Library Journal 101. CROSS REFERENCE Burden of Persuasion. PRIMARY AUTHORITY Law, in various forms, that a court must follow in deciding a case. Primary authority mainly consists of sta- tutes, decisions by the U.S. Supreme Court, and all judicial decisions handed down by the same court or a higher court within the same judicial system. CROSS REFERENCE Secondary Authority. PRIMARY EVIDENCE An authentic document or item that is offered as proof in a laws uit, as contrasted with a copy of, or substitute for, the original. Primary evidence, more commonl y known as best evidence, is the best available substanti- ation of the existence of an object because it is the actual item. It differs from secondary evidence, which is a copy of, or substitute for, the original. If primary evidence is available to a party, that person must offer it as evidence. When, however, primary evidence is unavail- able—for example, through loss or destruc- tion—through no fault of the party, he or she may present a reliable substitute for it, once its unavailability is sufficiently established. PRIME LENDING RATE The lowest rate of interest that a financial institution, such as a bank, charges its best customers, usually large corporations, for short- term unsecured loans. The prime lending rate, also known as the “prime rate,” is an index and not a law. It is an economic indicator that is often used as a measuring point for adju sting interest rates on other types of loans such as mortgages, car loans, credit card interest rates, and interest on student loans. The rate varies according to economic factors and is generally tied to the Fed Funds Target Rate, which is set by the Federal Open Market Committee (FOMC) within the Federal Reserve. When Prime Lending Rate changes, so do the financial obligations between parties whose dealings are influenced by it. PRIMOGENITURE The status of being the firstborn child among several children of the same parents. A rule of inheritance at COMMON LAW through which the oldest male child has the right to succeed to the estate of an ancestor to the exclusion of younger siblings, both male and female, as well as other relatives. This practice was not widely followed in the United States, and was abolished in the United Kingdom in 1925. PRINCIPAL A source of authority; a sum of a debt or obligation producing interest; the head of a school. In an agency relationship, the principal is the person who gives authority to another, called an agent, to act on his or her behalf and under his or her control. If the agent is authorized to act on behalf of a principal, he or she binds the principal legally (e.g., to terms of a contract, such as for the sale of a house, entered in the principal’s name) as a result of any legally consequential actions, which are those undertaken within the scope of authorized activity. A principal can also be rendered liable for the torts of an agent if committed in the course of official, authorized service to the principal. The agent owes the principal a fiduciary duty of loyalty. The authority can be terminated at any time. In CRIMINAL LAW, the principal is the chief actor or perpetrator of a crime; those who aid, abet, counsel, command, or induce the commis- sion of a crime may also be principals. In investments and banking, the principal refers to the person for whom a BROKER executes an order; it may also mean the capital invested or the face amount of a loan. A principal in the first degree is the chief actor or perpetrator of a crime. A principal in the second degree must be present at the commission of the criminal act and aid, abet, or encourage the principal in his or her criminal activity. FURTHER READING Gregory, William A. The Law of Agency and Partnership, 3d ed. St. Paul Minn.: West. CROSS REFERENCE Principal and Surety. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRINCIPAL 93 PRINCIPAL AND SURETY A contractual relationship whereby one party— the surety—agrees to pay the principal’s debt or perform his or her obligation in case of the principal’s default. The principal is the debtor—the person who is obligated to a creditor. The surety is the accommodation party—athirdperson who becomes responsible for the payment of the obligation if the principal is unable to p ay or perform. The principal remains primarily liable, whereas the surety is secondarily liable. The creditor—the person to whom the obligation is owed—can enforce payment or performance by the principal or by the surety if the principal defaults. The c reditor must always first seek payment from the p rincipal before approaching the surety. If the surety must fulfill the obligation, then he can seek recovery from the principal after satisfying the creditor. An example of a principal and surety relationship occurs when a minor purchases a car on credit and has a parent act as a surety to guarantee payment of the car loan. A suretyship arises from an agreement. Each of the parties must be compet ent. The parties must form the agreement through offer and acceptance, and the contract must be based on valid consideration. The parties must openly ASSENT to the contract so that all of the parties are known to each other. The surety must be identified as such so that the creditor will not hold that person primarily liable. If the face of the contract indicates a suretyship, the creditor receives suffici ent notice of the three-party arrangement. No special form of contract is needed to create a principal-and-surety relationship. The agreement can be consummated by written correspondence or be in the form of a bond. No particular language is needed to identify the relationship, since courts will examine the substance and not the form of the contract to determine whether a suretyship exists. Courts will rarely imply a suretyship agreement, except when an involuntary suretyship arises out of an implied oral agreement. When joint debtors obtain a loan, each is a principal for a proportionate share of the debt, and a surety for the remaining amount. In practice, however, each joint debtor is a principal and is primarily liable for the entire loan if the creditor seeks repayment. A joint debtor who pays the entire debt can, however, seek contribution from the other debtors. The surety’s liability is indicated by the terms of the contract. Unless otherwise pro- vided, a surety assumes the obligation of the principal. A surety, however, can limit his liability to a certain amount because the obligations of the principal and surety do not have to be co-extensive. When a surety agrees to be ac countable for a certain amount, she cannot be held responsible for a sum greater than that for which she contracted. The surety becomes liable when the principal breaches a contract with the creditor. In the absence of a contractual limitation, a surety’sliabilityis measured by the loss or damage resulting from the default by the principal. The liability of the surety terminates when the principal’sobliga- tion is fulfilled. In some states, a surety may not be sued after the obligation of the principal has become barred by a STATUTE OF LIMITATIONS.In jurisdictions that follow this rule, the s urety may elect to take advantage of the limitations defense that is available to the principal debtor. In other states, however, the running of the statute does not bar an action against a surety. FURTHER READINGS Klinger, Marilyn, George J. Bachrach, and Tracey L. Haley, eds. 2008. The Surety’s Indemnity Agreement: Law and Practice. Chicago: Tort Trial and Insurance Practice, American Bar Association. Leo, T. Scott, and Daniel Mungall, Jr., eds. 2005. The Restatement of Suretyship and Guaranty: A Translation for the Practitioner. Chicago: Tort Trial and Insurance Practice Section, American Bar Association. CROSS REFERENCES Debtor; Creditor; Lia bility. PRINCIPLE A fundamental, well-settled RULE OF LAW. A basic truth or undisputed legal doctrin e; a given legal proposition that is clear and does not need to be proved. A principle provides a foundation for the development of other laws and regulations. It is not to be confused with the word “principal,” which refers to the legal status or relationship of a person. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 94 PRINCIPAL AND SURETY PRINTERS INK STATUTE Statutes enacted in a number of states making it a misdemeanor to use representations that are untrue, deceptive, or misleading in advertisements. Once the Surgeon General and other experts began to understand the dangers of smoking, tobacco companies were no longer able to use proclamations in their advertising that their products provided health and vitality etc. PRIOR INCONSISTENT STATEMENTS Communications made by a witness before the time he or she takes the stand to testify in an action that contradict subsequent testimony given on the same exact facts. Prior inconsistent statements can be used in a lawsuit only to impeach (discredit) the trustworthiness of the witness’ testimony. They cannot, howev er, be used to esta blish the truth of the matter they address. The FEDERAL RULES OF EVIDENCE govern the use of prior inconsistent statements in federal courts. PRIOR RESTRAINT Government prohibition of speech in advance of publication. One of the fundamental rights guaranteed by the FIRST AMENDMENT to the U.S. Constitution is the freedom from prior restraint. Derived from English COMMON LAW, the rule against prior restraint prohibits government from banning expression of ideas prior to their publication. The rule against prior restraint is based on the principle that FREEDOM OF THE PRESS is essential to a free society. Attempts by government to obtain a prior restraint have largely been unsuccessful. The rule against prior restraint was undis- puted for much of U.S. history. The landmark case of NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), finally settled the issue, with the U.S. Supreme Court finding that the First Amendment imposed a heavy presump- tion against the validity of a prior restraint. In Near, the Court struck down a Minnesota state law that permitted public officials to seek an INJUNCTION to stop publication of any “malicious, scandalous and defamatory news- paper, magazine, or other periodical. ” The statute was used to suppress publication of a small Minneapolis newspaper, the Saturday Press, which had crudely maligned local police and political officials, often in anti-Semitic terms. The law provided that once a newspaper was enjoined, further publication was punish- able as CONTEMPT of court. Chief Justice CHARLES EVANS HUGHES, in his majority opinion, called the law “the essence of censorship” and declared it unconstitutional. With its decision, the Court incorporated the First Amendment freedom of the press into the DUE PROCESS CLAUSE of the FOURTEENTH AME ND- MENT . This incorporation made freedom of the press fully applicable to the states. Though Hughes agreed that a rule against prior restraint was needed, he acknowledged that this restriction was not absolute. The rule would not, for example, prevent government in time of war from prohibiting publication of “the sailing dates of transports or the number and location of troops.” Threats to national security interests are almost certain to prevail over freedom of the press, but it has proved difficult to invoke the “national security” justification. This was illustrated in the Pentagon Papers case of 1971 ( NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822). President RICHARD NIXON’s administration sought to prevent the New York Times and the Washington Post from publishing excerpts from a classified study (the Pentagon Papers) on the history of U.S. involvement in Vietnam, arguing that publication would hurt national security interests. The Supreme Court, by a 6–3 vote, held that the government’s efforts to block publication amounted to an unconstitutional prior restraint. The national security exception failed again in a 1979 case dealing with the publication of a magazine article that purported to explain the process for making a hydrogen bomb (United States v. Progressive, Inc., 467 F. Supp. 990 [W.D. Wis. 1979]). The federal government obtained a preliminary injunction against The Progressive, stopping publication of the article until a hearing on a permanent injunction could be held. Before the hearing, however, another publication printed a similar article. The government then dropped its lawsuit, and the magazine published the original article. Prior restraint issues have arisen over prejudicial PRETRIA L PUBLICITY in sensational criminal proceedings. The defendant’sright to a fair trial by an unbiased jury must be considered as well as freedom of the press. In exceptional circumstances, a court may depart GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIOR RESTRAINT 95 from prior restraint doctrine by restricting news coverage of a criminal case. These restrictions must be narrowly tailored, and they must not unduly restrict the right of the press to in form the public. The U.S. Supreme Court, in Nebraska Press Association v. Stuart, 427U.S.539,96S.Ct. 2791, 49 L. Ed. 2d 683 (1976), made clear, however, that these restrictions are severely limited. The Court invalidated a GAG ORDER issued by a state trial judge that forbade the publishing or broadcasting of any confessions, admissions, or facts that strongly implicated the defendant charged with a grisly mass murder. The rule against prior restraint does not apply to the publication of student-operated school newspapers. In Hazelwoo d School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988), the Supreme Court upheld a pu blic school principal’s deci- sion to remove certain controversial material from the school newspaper. The principal based his decision on fears that the articles on teen pregnancy and DIVORCE would allow students to identify classmates who had encountered such difficulties. Justice BYRON R. WHITE ruled that educators did not “offend the First Amendment by exercising editorial control so long as their actions are reasonably related to legitimate pedagogical concerns.” Prior restraint issues have also appeared in cases involving the picketing of clinics where ABORTIONS are performed. In Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Supreme Court upheld a Colorado law that required anti-abortion demonstrators to stay at least eight feet away from anyone entering or leaving medical facilities. The protesters had argued that this restriction was a prior restraint on their First Amendment right to express their views on abortion. Justice JOHN PAUL STEVENS stated that prior restraint related to restrictions “imposed by official censorship.” The Colorado law only applied if the “pedes- trian does not consent to the approach.” Therefore, the private individual, not the government, exercise the right not to hear the protesters views in close proximity. The pro- testers were free to display signs that could be seen eight feet away from the person entering or leaving the clinic. FURTHER READINGS Fisher, Louis, and Katy J. Harriger. 2009. American Constitutional Law: Volume 2, Constitutional Rights: Civil Rights and Civil Liberties. 8th ed. Durham, NC: Carolina Academic Press. Friendly, Fred. 1981. Minnesota Rag: The Scandal Sheet That Shaped the Constitution. New York: Random House. Levy, Leonard Williams. 2004. Emergence of a Free Press. Chicago: Ivan R. Dee. Rudenstine, David. 1996. The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley: Univ. of California Press. CROSS REFERENCE Incorporation Doctrine. PRISON A public building used for the confinement of people convicted of serious crimes. Prison is a place used for confinement of convicted criminals. Aside from the death penalty, a sentence to prison is the harshest punishment imposed on criminals in the United States. On the federal level, imprisonment or INCARCERATION is managed by the Federal Bureau of Prisons, a federal agency within the DEPARTMENT OF JUSTICE . State prisons are supervised by a state agency such as a department of corrections. Confinement in prison, also known as a “penitentiary” or “correctional facility,” is the punishment that courts most commonly im- pose for serious crimes, such as felonies. For lesser crimes, courts usually impose short-term incarceration in a jail, detention center, or similar facility. Confining criminals for long periods of time as the primary form of punishment is a relatively new concept. Throughout history, various coun- tries have imprisoned criminal offenders, but imprisonment was usually reserved for pretrial detention or punishment of petty criminals with a short term of confinement. Using long-term impr isonment as the primary punishment for convicted criminals began in the United States. In the late eighteenth century, the nonviolent Quakers in Pennsylvania proposed long-term confinement as an alternative to CAPITAL PUNISHMENT. The Quakers stressed solitude, silence, rehabilita- tion, hard work, and religious faith. Confine- ment was originally intended not only as a punishment but as an opportunity for renewal through religion. In 1790 the Walnut Street Jail in Philadel- phia constructed a separate cell house for the sole purpose of holding convicts. This was the first prison in the United States. The concept of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 96 PRISON long-term imprisonment be came popular as the U.S. public embraced the concept of removing offenders from society and punish- ing them with confinement and hard labor. Before the existenc e of prisons, mos t offenders were subjected to CORPORAL PUNISHMENT or public humiliation and then released back into the community. In the nineteenth century, as the United States became more urban and industrial, poverty became widespread, and crime increased. As crime increased, the public became intolerant of even the most petty crimes and viewed imprisonment as the best method for s topping repeated criminal activity. The early nineteenth century was filled with fierce debates about how a prison should be run. There emerged two competing ideas: the Auburn System and the Eastern PENITENTIARY System. The Auburn System took its name from the Auburn, New York, prison, which opened in 1819. At first, the prison placed all its worst offenders in solitary confinement, but this arrangement led to nervous breakdowns and suicides. The system was modified so that inmates slept in separate cells but worked and ate together. However, the inmates were forced to remain silent. Administrators believed this code of silence would prevent prisoners from picking up bad attitudes and would prom ote their rehabilitation. The Eastern Penitentiary System at Cherry Hill, Pennsylvania, opene d its gates in 1829. The prison building was designed in the form of a central hub with spokes radiating from this administrative center. Small cells lined each spoke and prisoners had their own exercise space. Unlike the Auburn System, this system promoted extreme isolation. Not surprisingly, many inmates committed SUICIDE. In time, the Auburn System prevailed, as state legislatures saw advantages in congregate living. The Auburn System encouraged prison industries to help make prisons self-supporting. By the mid-nineteenth century, prisons existed throughout the United States. Prisoners were kept in unsanitary environments, forced to work at hard labor, and brutalized by guards. These conditions continued until the 1950s and 1960s, when heightened social and political discourse led to a renewed emphasis on rehabilitation. The closing of one particular prison sym- bolized the change in correctional philosophy. Alcatraz Prison, located on an island off San Francisco, was used exclusively to place in solitary confinement convicts classified as either violent or disruptive. Rehabilitation was nonexistent in Alcatraz. The prison was filthy and rat-infested, and prisoners were held in dungeon-like cells, often chained to stone walls. Established in 1934, Alcatraz was closed in 1963, in part because its brutal treatment of prisoners symbolized an outdated pen al philosophy. By the mid-1960s the stated purpose of many prisons was to educate prisoners and prepare them for life after prison. Many federal and state courts ordered administrators to improve the conditions inside their prisons, and the quality of life for inmates greatly improved. In 1971 a bloody, day-long riot at the Attica Correctional Facility in New York sparked a reaction against rehabilitative ideals. More than 40 people were killed in the uprising in Attica. Shortly after the Attica riot, the Federal Bureau of Prisons began to transfer unruly federal prisoners to the Federal Peniten- tiary at Marion, Illinois, where they were held in solitary confinement. In 1983, after three On March 21, 1963, the last of the inmates housed at Alcatraz Prison were transferred to other facilities. The permanent closing of the prison reflected the renewed emphasis on the rehabilitation of prisoners that arose during the 1950s and 1960s. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PRISON 97 . 524, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PREVENTIVE DETENTION 89 72 S. Ct. 525, 96 L. Ed. 547 [1952]; Wong Wing v. United States, 163 U.S. 2 28, 16 S. Ct. 977, 41 L. Ed. 140 [ 189 6]) the development of other laws and regulations. It is not to be confused with the word “principal,” which refers to the legal status or relationship of a person. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E. 10-14-603 [West 1996]). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 92 PRIMA FACIE FURTHER READINGS Herlitz, Georg Nils. 1994. “The Meaning of the Term ‘Prima Facie.’” Louisiana Law Review 55. Whisner,